Reviewed by Kimberley Brownlee, Manchester Centre for Political Theory, University of Manchester. Email: kimberley.brownlee [at] manchester.ac.uk.

pp.12-14

In this highly readable monograph, Stephen Sheppard defends a seemingly simple claim: ‘Officials must be moral, not just legal’ (p.xv). This once unquestioned thesis is now subject to an all-too-common distrust about moral concepts, in general, and about the role of universal judgements in public life, in particular. Although Sheppard focuses on the place of, and perception of, legal officials in American history and contemporary politics, his work is a generally relevant challenge to political realism; it contributes to a much needed rethinking about the kernels of legitimate concern (about fanaticism and authoritarianism) that lie behind skittish, under-theorised worries about the very idea of morality, which are pervasive outside places of worship and analytic philosophy seminars.

Sheppard recognises, and succinctly summarises, the challenges that political, social, and legal realities pose for an evaluation of moral obligations in public life. These challenges include: expectations and conformist pressures of the legal professional subculture, constraints arising from institutional and procedural norms, tensions between officials’ decisions, largely unregulated domains of discretion, and the complex environment of professional legal action. It is partly Sheppard’s sensitivity to these realities that prompts him to adopt a practical approach to justice – the retail view of justice – which puts aside foundational questions about justice to focus upon law as it is actually practised. Sheppard states that the compelling normative questions ‘on the ground’ are whether the actual results of a given legal case are fair or good, or right, or do justice, or give the persons involved confidence in the law, and so on. He acknowledges that such questions are related to foundational theoretical questions about right, good, and justice, but thinks that discussion of the practice of law does not begin with reflection upon such questions. Indeed, Sheppard’s approach is not a typical ‘bottom-up’ approach to practical ethics which first examines the actual practice, then reflects abstractly upon its central issues and professed aims through the lens of normative theory before returning to the practice with critical standards, normative conclusions, and recommendations. As Sheppard himself openly acknowledges, he provides no theoretical exploration of, or defence for, the normative judgements that he makes. Instead, he offers an aggregation of stories and ideas from jurisprudence, legal cases, history, religion, and culture, stating that:

The arguments depend...upon the reader’s decision to accept or reject the conclusions drawn from these illustrations. In short the reader has little [*13] netting from familiar [theoretical] texts and must walk alone the moral tightrope over law (p.xxiii).

This is a potentially risky strategy since it is Sheppard, not the reader, who is walking this tightrope. Without some exploration of the deeper theoretical foundations for his normative judgements about officials’ decisions, Sheppard will have difficulty allaying the worries of sceptics who may well think he is making it up as he goes along.

That said, Sheppard’s detachment from foundational questions has its advantages. It allows him to be fully sensitive to differences in circumstances, powers, rules, and the epistemic status of various officials. In essence, it frees him to explore all of the intricacies of the social, cultural, and psychological dimensions of official life, beginning with the observation that legal officials are central to the institution and practice of law. Legal offices are the building bricks of a legal system and the persons who occupy those offices are its mortar. They make up the very particular professional culture that manages and synthesises, for better or worse, that archive of binding rules that is the law (p.14). On this picture, a legal official is any person who is given authority by a law to act, whether individually or in a group, in ways that directly or indirectly affect other persons through the apparatus of the legal system (xxvi). This simple characterisation of the legal official is overly broad since it invokes features that are not distinctive of official action. Many ordinary, non-official legal rights grant their right-holders the power to act in ways that affect others through the apparatus of the legal system. What is distinctive about officials’ powers are the ways that they can affect persons through that apparatus. Sheppard fleshes out the distinctive impact that official action has upon people’s lives with an explication of nine metaphors of state power and responsibility. These are: 1) the sword (a monopoly on force), 2) the shield (the duty to provide security), 3) the balance (power of judgement), 4) the coin (control over economic regulation), 5) the commons (title to public goods), 6) the guide (the signal for personal morality), 7) the mirror (representation and the people’s identity), 8) the seal (superior authority with little or no oversight), and 9) the veil (anonymity and lack of direct accountability) (pp.75-99).

From this outline of the central place of officials within people’s lives, Sheppard identifies several putative sources of moral obligation for them including: the special risks that are created by legal offices, the promises that officials make when they take oaths of office, the expectations that the professional culture places upon officials, the implications that flow from voluntarily assuming an office, the reliance of others upon officials which officials knowingly accept, as well as general principles of morality (pp.102-116). The resulting obligations he categorises under four headings: personal, institutional, procedural and substantive (pp.141-178). The sources of obligation that Sheppard lists are a complex set that raises interesting questions: Is each putative source of obligation to be viewed as normatively on a par with the others? If not, how are categories of obligation, including legal obligation, to be ranked or traded-off against each other? To what extent are content-sensitive [*14] restrictions built into sources of moral obligation such as promise-keeping, reliance, and voluntariness? The brief answer seems to be ‘it all depends’.

One admirable feature of Sheppard’s discussion is that it expands scholars’ focus to include the full range of official roles that together comprise the interlocking web that is a legal system. Sheppard observes rightly that the legal role which has received the most attention amongst legal theorists, and some philosophers, is that of judge, and that

[the] emphasis on the judge as the essential form of legal official is not just incomplete, it skews many of our notions of law, not least in creating the false impression that the decision of the official is usually an individual and isolated action, rather than a collaborative one made deep within a great nest of institutions (p.xix).

By contrast, Sheppard gives attention to the legal roles of police officer, juror, lawyer, politician, and even voter, each of which is a legal official when acting with the power to affect others in particular ways through the apparatus of the law. The challenges that confront each official vary according to the nature of her office and the practical realities of executing its functions in a complex, pluralistic, contemporary (American) society. A second admirable feature of Sheppard’s discussion is his sensitivity to the impact both of history and historical injustice upon contemporary political and legal decisions, and of the innumerable pressures that inform, and sometimes corrupt, officials’ individual decisions. With such pressures in mind, Sheppard concludes his book with a chapter entitled ‘Tools for the Trade’, which offers both a handy guide of maxims and a list of fallacies in reasoning for the benefit of practising officials (pp.226-263).